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Wills & Estates > Will Deck > Flashcards

Will Deck Flashcards

1
Q

Inheritance

A

die without a will, property goes to your heirs at law

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2
Q

Non-probate transfers

A

joint tenancy with the right of survivorship, trusts, k’s such as insurance policies, bank account set up payable on death/transferable on death

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3
Q

Probate administration

A

process of wrapping up debts, distributing property

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4
Q

Intestate

A

dies without a valid will or a valid will which fails to dispose of all property

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5
Q

Consanguinity

A

descendant or you share a common ancestor, related by blood

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6
Q

Affinity

A

married or spouse of one is related by consanguinity/blood (spouse is the only one of her inheritance, step-children not covered in this state, no one else related by affinity)

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7
Q

Heirs

A

someone who takes when someone dies

no living person has heirs, only heirs apparent

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8
Q

Ownership

A

Who owns it upon death

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9
Q

Occupancy

A

children cannot take from spouse. Death, abandonment, or sell enable children to act. Occupier must pay interest on the mortgage and taxes

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10
Q

Parentelic System

A

remote ancestors divided between father and mothers side

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11
Q

Does an attorney owe a duty of care to the beneficiaries of a client’s will or trust?

A

No… unless the attorney also represents the beneficiaries, duh

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12
Q

If your firm represents a husband and wife and another woman who has a child by the husband, what may the firm disclose to the wife?

A

MAY disclose that another child exists but cannot reveal the other woman’s identity.

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13
Q

What happens when a husband and wife die simultaneously?

A

If there is no sufficient evidence of the order of deaths, each was deemed to have predeceased the other, so neither inherited from the other.

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14
Q

120 hour rule

A

If the beneficiary does not survive the decedent by 120 hours (5 days), they are treated as if they predeceased the decedent.

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15
Q

Can an adopted adult inherit from a biological parent?

A

Nope

reasoning - adopted adult made the choice

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16
Q

Can a beneficiary inherit if they were “virtually” adopted?

A

Nope, no authority to enter into adoption contract

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17
Q

What is Posthumus Child?

A

Child that is conceived while the father is alive, but the father dies before the child is born

18
Q

When can a Posthumus child inherit?

A

If the child is born anytime after that father’s death

19
Q

What determines paternity?

A

Any child born within 301 days (10 months) of the death of the father or dissolution of a marriage, the child is presumed to be born to the married couple

20
Q

How do you determine if a posthumous child who is the result of artificial insemination can receive social security benefits if there genes can be traced to the alleged father?

A

Three Part Test:

  1. Interest of State in orderly administration
  2. Interest of Child
  3. Interest of Decedent
21
Q

Freedom of Disposition policy arguments

A

Should we restrictions on a persons ability to control their property?

What about being too controlling?

22
Q

When are restrictions in a will not valid?

A

When it goes against public policy.

Example: Quaker owning his daughter to only a man in that area - not a good selection size

Counter Example - Dad restricted son from marrying specific woman - can marry anyone else on earth

23
Q

Can a will force a religion on someone?

A

No

24
Q

Can a court change a restriction in a will to make it more palatable?

A

No, they will either leave it in or take it out

25
Q

If an attorney messes up drafting a will and admits it, can the judge change the contents of the will?

Can the beneficiaries sue the attorney?

A

No

Can’t sue attorney in Texas

  • Attorney does not owe a duty to the persons intended to benefit
  • fear of unlimited potential liability
  • attorney would be conflicted between desires of testator and beneficiaries
26
Q

Does a firm have a legal duty to inform the wife, when her money could technically be given to the husband’s child?

A

They don’t have to but may.

27
Q

Requirements for mental capacity?

A

Must be 18, married or military

Must be of sound mind

28
Q

Sound mind?

A

Being capable of knowing and understanding in a general way:

  • that you’re making a will
  • nature and extent of property
  • who the beneficiaries are
  • what their disposition is
  • overall be able to understand who is getting what

does not have to know everything

29
Q

Who can challenge a will if there are concerns of mental capacity?

A

Any interested party may contest the will

30
Q

What’s the statute of limitations on challenging a will for mental capacity in texas?

A

2 years after probate

or

2 years after the date the fraud or forgery is discovered

31
Q

Insane Delusion

A

A false conception of reality. When someone is presented with evidence and they still do not believe it to be true.

In Texas - no insane delusion if there is ANY factual basis for the belief. Doesn’t take much

32
Q

A contestant to a will made under insane delusion must show what?

A
  1. there is an insane delusion

2. the insane delusion caused the disposition made in the will (direct link)

33
Q

What does it take to revoke a will in Texas?

A
  1. in writing
  2. physical act with intent to revoke
  3. must follow formalities
34
Q

What happens when Will 1 says “everything to A” but Will 2 says “Leave the car to B”

A

Will 2 will be considered a codicil to Will 1.

A will get everything but the car.

35
Q

What happens when Will 1 says “everything to A” but Will 2 says “Leave the car to B”. Then the testator tears up Will 1.

A

Goes to probate.

Will 2 was codicil of Will 1

As the original Will was revoked, all codicils are revoked with it.

36
Q

Can a written revocation on the back of a will that does not otherwise comply with statutory requirements for revocation by cancellation effect its revocation?

A

No, it must be on the writing or “this will is void”

Has to deface it.

37
Q

What happens if the testator dies and the will cannot be found?

A

The will is presumed to be revoked.

38
Q

Can a testator revoke a will by destroying a photocopy of it?

A

Nope.

39
Q

How is the presumption that a lost will was destroyed?

A

Preponderance of the evidence standard

Ex: Fire destroys will, omitted heir is the first person to enter burned house

40
Q

What happens in Texas if the a will leaves A the car and everything else to B, but the testator crosses out A?

A

Not valid, release case to probate. A still gets car

41
Q

What does a valid execution of a will require?

A

(1) testator must be 18 years old, married, or in the armed services
(2) written and signed by the testator
(3) signed by at least 2 competent witnesses

42
Q

What does it take to prove testamentary intent?

A

(1) understands the nature of what she’s doing
(2) knows the nature and objects of her bounty
(3) knows the nature and extent of property
(4) understands her disposition

Wills & Estates (2 decks)

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